Legal scholars question immigration ban

Within hours of its passage, President Donald Trump’s executive order limiting immigration from seven majority-Muslim countries and banning refugees drew immense controversy and incited protests around the country. District court judges in New York, Boston, Virginia and Seattle issued decisions blocking parts of the executive order, while the country’s top law enforcement official, acting Attorney General Sally Yates, was fired for refusing to defend the ban.

Central to the fallout is the question of the constitutionality of Trump’s recent order. In interviews with the News, nine law professors from Yale and beyond refuted Trump’s argument for national security and seven called the order at least partially unconstitutional.

“What happened is mean and inhumane,” said Peter Edelman, law professor at Georgetown Law School who served in the secretary of health and human services under the Clinton administration. “Adding bad intentions to gross incompetence produced havoc. Along with the grave constitutional and other legal questions, the utterly arbitrary detention this past weekend reminds one of Korematsu. We thought we had said never again.”

Erwin Chemerinsky, a prominent scholar in constitutional law and dean of the University of California, Irvine School of Law, said the order is illegal because it runs afoul of the 1965 Immigration and Nationality Act, which abolished the quota system for citizenship based on national origins. And in a Saturday email to the News, former Yale Law School Dean Harold Koh called the order “motivated by discrimination” based on national origin and religion.

“It is unconstitutional to discriminate based on religion,” Chemerinsky said. “It is inhumane in denying entry to refugees.”

The Constitution

Trump’s executive order denies entry to Syrian refugees indefinitely, suspends admissions of refugees for 120 days and bars citizens from seven Muslim-majority countries from entering United States for 90 days. The contention surrounding the order’s constitutionality focuses on whether the affected Muslims were banned on the basis of their religion.

Laurence Tribe, a professor of constitutional law at Harvard Law School, said the ban’s explicit carve-out to protect Christians as a specific minority in the seven countries — rather than protecting all religious minorities, such as Sunni or Shiite Muslims when they are outnumbered — serves as a proof that the order is unconstitutional.

“The ban is a religious gerrymander that violates the First Amendment’s Establishment Clause,” Tribe said. “And that’s just one of its glaring legal infirmities.”

Tribe received national attention when he joined a legal team suing Trump for his ownership of the Trump Organization earlier. The suit alleged that the transactions between foreign governments and Trump’s business holdings violated the Emoluments Clause of the Constitution, which prevents individuals holding office from accepting any present or emolument from any foreign state.

Michael Dorf, a professor at Cornell Law School and a legal commentator who specializes in constitutional law, said the order represents a violation of the Free Exercise and Establishment clauses of the First Amendment, which protects free expression of religion, as well as the equal protection component of the Fifth Amendment’s Due Process Clause.

“Given the history of the order and the recent statement by Rudy Giuliani, there is ample evidence that its goal is to limit Muslims entering into the U.S.,” Dorf said. “It is true, of course, that the order does not bar all or even most Muslims and that it also applies to non-Muslim nationals of the listed countries, but that does not alter the bottom line.” Giuliani has told the media that Trump referred to the order as the “Muslim ban” in their conversation.

Citing relevant legal precedents, Dorf explained that any law or policy that has a disparate impact on a group defined by a “suspect characteristic,” such as religion, and that was adopted for the purpose of that disparate impact is unconstitutional.

Yet Dorf recognized limits on the court’s ability to order relief to noncitizens outside the U.S. when noncitizens challenge their exclusion from the country.

“However, the president is under a duty to abide by the Constitution even, one might say especially, when the courts leave the relevant area to him,” Dorf said.

Jamal Greene LAW ’05, a professor at Columbia Law School, agreed that federal laws give the president “tremendous latitude” over immigration policy but the order is still constitutionally dubious.

Although on its face, the order does not single out the Muslim religion, Trump’s public statements prior to and after issuing the order indicate its discriminatory intention, which Greene called “constitutionally intolerable.”

Aside from the question of constitutionality, other law professors also pointed to problems with the general legality of the ban.

“The 1965 statute, which is really the basis of our immigration policy, has a specific provision barring discrimination on the basis of national origin that can’t be modified by executive order,” Philip Bobbitt LAW ’75, a professor at Yale Law School said, referring to the 1965 Immigration and Nationality Act.

National Security

In a statement released Sunday afternoon responding to the massive protests escalating across the country, Trump said the ban is “not a Muslim ban” — instead, “this is about terror and keeping our country safe.”

Yet, experts said the ban’s value to national security is minimal, citing the arbitrary selection of affected countries and a rigorous vetting process for refugees already in place.

“There is no linkage between immigrants from these countries and terrorism in the U.S.” said Adam Winkler, a professor of constitutional law at Georgetown.

Cristina Rodríguez ’95 LAW ’00, a law professor at Yale who specializes in immigration law and policy, among other things, said refugees who have been cleared have gone through rigorous, sometimes multiyear process of investigation.

Trump has said he and his team will come up with a stricter vetting process in the 90-day window, but Rodríguez doubted the efficacy of any potential additions to existing policy.

For example, she suspected that Trump could impose ideological check to ensure that immigrants share “the same values as Americans,” but such “amorphous” requirements do not help boost national security.

Without any positive influence on the refugee screening process, experts argued that the imposition of the ban has rendered U.S. relations with allies perilous.

“Just as a matter of policy, this seems like a very clumsy way to build a global alliance against Islamic terror,” Bobbitt said. “This is much more likely to alienate our allies and isolate our friends in the affected regions.”

With four district court justices already taking action to block the implementation of the order, there seems to be hope for further legal challenges on the order. With Trump’s Tuesday night announcement of Neil Gorsuch as his Supreme Court nominee, the highest court in the land will likely have a conservative majority for years to come.

Yet moral compass may outweigh party lines, argued Yale Law School professor Owen Fiss, one of the most-cited legal scholars in constitutional law.

“My own view is that the violations are so flagrant that in both of these cases that it won’t be just the liberal wing of the court that responds,” Fiss said. “I imagine John Roberts, the chief justice, will be horrified by the grossness of these violations. Sometimes things get so bad that everyone responds. And I don’t think John Roberts wants to go down in history as being a kind of tool of Trump.”